Writing the Rules

Mary Penny Thompson

General Counsel

Why is it so hard to write a good rule?

Complex Subject Matter

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Multiple Audiences

Multiple Authors

Shelf Life

What is the difference between a policy and a rule?

How do I know if a rule has statutory authority?

Start Writing!

Who and What

Who

• Singular subject

• Person

• Avoid Pronouns

• Eliminate “no person”

What

• Active Voice

• Present Tense

• Reserve “shall” for commands

• Use “may” with discretionary acts

General Principles

• Only necessary words• Avoid compound constructions• Avoid redundant legal phrases• Avoid legalese• Be consistent• Use short sentences• Arrange words carefully• Use lists to simplify• Punctuate properly

Special Rules

• Definitions• Conditional Sentences• Exceptions• Provisos• Cross References• Capitals

Rule Writing Samples

The mayor of a municipality must submit an ordinance to the Director for approval. If the ordinance is disapproved, he must notify the City Council within thirty days of the disapproval.

(a) No owner or operator shall do any of the following activities, that is not otherwise exempted, without first applying for and obtaining an air quality permit: 15A NCAC 2Q.0101 - DAQ

sources of water pollution which preclude any of these uses on either a short-term or long-term basis shall be considered to be violating a water quality standard. 15A NCAC 2B.0212(2) - DWQ

Authority to grant or deny requests for declaratory rulings is hereby delegated to the Commission.

Drilled well shall be completely filled with cement grout, which shall be introduced into the well through a pipe which extends to the bottom of the well and is raised as the well is filled. 15A NCAC 2C.0214(a)(2)(D) - DWQ

(1) Each candidate shall attend and successfully complete a prescribed burn school consisting of instruction on . . . 15A NCAC 9C.1102(1) - DFR

(a) With the exception of Paragraph (b) of this Rule, sources subject to national emission standards for hazardous air pollutants promulgated in 40 CFR Part 61 shall comply with emission standards, monitoring and reporting requirements, maintenance requirements, notification and record keeping requirements, performance test requirements, test method and procedural provisions, and any other provisions, as required therein, rather than with any otherwise-applicable Rule in Section .0500 of this Subchapter that would be in conflict therewith. 15A NCAC 2D.1110(a) - DAQ

These maps shall be submitted to the Division for approval by any local government wishing to use this method of implementation . . . .

In determining the amount of the penalty, the Secretary shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount of money the violator saved by noncompliance, whether the violation was committed willfully and the prior record of the violator in complying or failing to comply with this Article. G.S. 113A-64(a)(3)

In determining the amount of the civil penalty assessment, the director shall consider the following criteria:

1) severity of the violation,2) degree and extent of the harm,3) type of violation,4) duration,5) cause,6) extent of any off-site damage which may have resulted,7) effectiveness of action taken by violator,8) adherence to plan submitted by violator,9) effectiveness of plan submitted by violator,10) cost of rectifying any damage,11) the violator’s previous record in complying with rules of the

commission,12) estimated cost of installing and/or maintaining corrective

sediment control measures, and13) staff investigative costs. 15A NCAC 4B.0126 - DLR

From Scratch?